Industries & Practices

Construction

City immune to a landowner’s trespass claim for a stormwater pipe installed without an easement

Nan Wallace1 experienced cracks in the walls, foundation and chimney of her residence, which she believed were caused by blockage in a stormwater pipe that flowed beneath her driveway and garage and into her backyard. Wallace filed a claim with the City of Rossford for the damage, which the city denied after an investigation. Shortly thereafter, the city installed new storm drains in the front of Wallace’s property, eliminating the need for the pipe that ran beneath it. The city then capped the pipe with concrete.

In response to the city’s denial, Wallace brought suit alleging that it had no easement for the pipe, which ran through her property and into the backyard and was thus trespassing on her property. Wallace sought an injunction requiring the city to remove the pipe and repair the damage she suffered to her property.

The city asserted sovereign immunity against Wallace’s trespass claim, arguing that trespass is an intentional tort for which it is immune. The city also argued that, due to the cap, water was no longer flowing through Wallace’s property, precluding the need for the requested injunction for its removal.

The trial court agreed with the city and found that it was immune from a claim for trespass and that, because no water was flowing through the pipe, its removal was unnecessary. Wallace appealed.

The court of appeals affirmed, determining that the city was properly immune from Wallace’s trespass claim, as trespass is an intentional tort, and the city is only subject to suit for negligence in its proprietary functions. The court also found that the city had eliminated any possible further damage to Wallace’s property by capping the pipe and held that the injunction was properly denied.